Property and Commercial – Tips & Traps February 2015

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Duty, Sales & Development Agreements – does it apply to yours?

Duty hasn’t traditionally applied to development agreements, however a recent ruling in the High Court has the potential to change the landscape. In that scenario, a development agreement and contract of sale were entered into between purchaser and seller, however the seller didn’t provide any particular service or value under the development agreement and so it was deemed all money paid formed part of a price paid for the underlying purchase.

Contrastingly, it may be the case that a more traditional development agreement that sees a seller providing development services as distinct from the underlying sale does not attract the same duty considerations. Purchasers should be alert to the terms of any development agreement and also ensure that correct apportionment is applied to the sale and the development services provided. A failure to do so may result in additional duty needing to be paid. Want to know more? Call Andrew Johnson or Tony Butler.

Rent Review Submissions – don’t be tardy!

At market review time under a lease there is often a time period placed upon a lessee submitting its assessment of the new rent. It was recently decided by the courts that a failure to comply with a timeframe on the submission by the lessee could ultimately result in the lessee being stuck with the lessor’s assessment, even if that assessment is potentially unreasonable. In the case in question a lessee took 2 months to submit its assessment when the prescribed timeframe was 30 days. As a result they got stuck with a new rent that was 22% higher. The key takeout for lessor’s and lessee’s here is to be mindful of all timeframes around rent review time! Want to know more? Call Tony Butler.

Restraints of trade – don’t be unreasonable

If you want to be able to rely on a restraint of trade clause, it is crucial you don’t make the restraint unreasonable. A recent decision saw the owners of the Thredbo resort trying to enforce a restraint on a holiday booking company using the word ‘Thredbo’ except to describe the location of the actual holiday. As the name of the company was ThredboNet and it was located in Thredbo this would have effectively meant the company couldn’t even use its address. As the original restraint was part of a sublease and aimed at protecting goodwill and trading reputation and it wasn’t proved that the restraint being sought (use of the word ‘Thredbo’ in any context) was necessary to ensure this, the restraint was found to be void. As a result, if you are looking to have a restraint in the future, ensure that the restraint doesn’t go beyond what is required to protect your genuine business interests. Want to know more? Call Tim Cox.

Brisbane Native Title Claim Rejected

The native title claims of the Yugara and Turrbal People which related to Brisbane and its surrounding areas were recently rejected. The Yugara and Turrbal People were unable to establish that they had a continued and substantially uninterrupted system of traditional laws and customs that were observed. What this means for people developing land in Brisbane is that there will no longer need to be a consideration of complying with the Native Title Act. There will, however, still be continuing obligations under the Queensland cultural heritage legislation. Want to know more? Call Andrew Johnson.

Civil Contractors – some licensing changes you need to know about

Queensland Contractors are no longer required to be licensed to undertake the following building works carried on from 1 December 2013:

  • the construction, extension, repair or replacement of a water reticulation system, sewerage system or stormwater drain other than works connecting a building to a main; and
  • the construction, maintenance, repair or a road or a tunnel for a road including an area of land developed or to be developed for the public use of driving or riding of motor vehicles other than a driveway to private property.

This is as a result of amendments to the Queensland Building Services Authority Act 1991 (Qld) (QBSA Act) which has now been renamed the Queensland Building and Construction Commission Act 1991 (QBCC Act).

For further information, please do not hesitate to contact us.

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